R v IP

[2024] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v IP [2024] NSWCCA 16

Hearing dates:

On the papers

Date of orders:

26 February 2024

Decision date:

26 February 2024

Before:

Harrison CJ at CL at [1];
Wright J at [17];
Wilson J at [18]

Decision:

Allow publication of the name of BM in full

Catchwords:

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E

Criminal Appeal Act 1912 (NSW), s 5F(3A)

Cases Cited:

R v IP [2023] NSWCCA 314

Category:

Procedural rulings

Parties:

Director of Public Prosecutions (Applicant)
IP (Respondent)

Representation:

Counsel:
A Bonnor (Applicant)

Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Ramsland Laidler (Respondent)

File Number(s):

2022/9349

Publication restriction:

Nil

JUDGMENT

1. HARRISON CJ at CL: During the trial of this matter last year, the Director of Public Prosecutions appealed to this Court pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) from rulings made by her Honour Sweeney J on 20 November 2023. Her Honour had published a judgment in which she dismissed objections taken by the Crown to the admission of certain portions of expert evidence directed to the question of whether the Crown can rebut the presumption of doli incapax. We allowed the appeal and made certain consequential orders: R v IP [2023] NSWCCA 314. The reasons for judgment were restricted to the parties pending the verdict or further order of the Court. On 20 December 2023, a not guilty verdict was returned by the jury. The criminal proceedings are now complete and there remains no impediment to the publication of the Court’s judgment.

2. Since then, the Crown had notified the Court that the senior next of kin of the victim BM wish to waive their right to the protection of his anonymity. Their consent to publishing his name has been communicated in writing to the Director who in turn is satisfied that the statutory requirements for that to occur have been established. The burden of that submission is that when the Court’s unrestricted judgment is published, BM’s full name should be disclosed.

Crown submissions

3. The Crown emphasised that IP continues to enjoy the protection afforded to him by s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). In such circumstances it is said to follow that the question to be considered is whether the publication of BM’s name would be likely to lead to the identification of IP so as to frustrate the statutory protection. The Crown submitted that the publication of BM’s name in the judgment would not, without more, identify IP or be likely to lead to his identification.

4. For example, any person who is already aware of BM’s identity and the circumstances of his death, such as his family and friends, as well as a large range of others in the community, is highly likely already to be aware of IP’s identity. To the extent to which they are not, it does not appear that the terms of the judgment itself are such that publication of BM’s name would identify IP to those persons or be likely to do so. The judgment already contains information with references to BM and IP and the attending circumstances. For example:

• IP stabbed BM three times with a knife in a fight: [4]-[5], [9], [22], [23], [30];

• IP’s brother and another boy warned him against using knives in a fight: [30];

• IP had the knife and lied about its use: [30];

• IP was filmed when he stabbed BM, in front of their peers who could identify him: [20];

• IP was 13 years 5 months old at the time of the incident: [3];

• IP was a capable if disruptive student of at least average intelligence: [30];

• IP had diagnoses of ADHD and PTSD: [20]; and

• IP had possibly been attacked or teased: [20].

5. The Crown submitted that these matters tend to support the fact that there is a sizeable cohort of people who are already aware of IP’s identity in connection with BM’s death. It also supports the fact that people beyond that cohort are unlikely to be able to identify IP from the judgment if BM’s name is published. In the main, the information is unrelatable to IP. Information personal to IP, such as his age, that he had a brother or that he had particular diagnoses, is non-specific in nature and applicable to others in the general population.

IP’s submissions

6. The representatives of IP have expressed opposition to the lifting of the restriction on the publication of BM’s name upon the basis that it “will inevitably lead to the identification of [IP] in breach of s 15A(1)”.

7. Submissions made on behalf of IP were to the following effect. First, publication of BM’s name might tend to identify IP upon the basis that, throughout the trial there had been what Mr Ramsland, the solicitor for IP, described in his affidavit sworn on 8 February 2024, as “a clear effort to identify … IP via social media posts.” For example, since IP was acquitted, the Facebook group “Youths Against Violence” has identified BM on several occasions when sharing newspaper articles or details for memorials, and has subsequently allowed comments on these posts identifying IP, notwithstanding the prohibition on publication. Her Honour Sweeney J in fact raised concerns during the trial that mobile phones were being used to take photographs of IP and evidence was led at the trial that IP was subjected to bullying and death threats both before and after the stabbing incident. Mr Ramsland has been advised by IP’s aunt that prior to the commencement of the trial, two knives covered in what appeared to be blood were left on her doorstep. The stabbing occurred at a particular suburb, in a well-known location. IP currently resides within 50 kilometres of where the stabbing took place.

8. Section 15A(5) provides that a reference to the name of a person includes a reference to any information, picture or other material that is likely to lead to the identification of the person. It is submitted, by reason of the tragic and unfortunate nature of the case, the continuing close proximity of IP and other witnesses, coupled with the ubiquitous prevalence of social media commentary which has already identified IP, that the publication of BM’s name in any judgment is likely to lead to his identification. It was further submitted on behalf of IP that it is no answer to the current application to assert that anyone who is aware of the circumstances in which BM was killed will already be aware of IP’s identity. It was submitted on IP’s behalf that the judgment itself should not remain restricted but that BM’s name should.

9. It has not been contended that the s 15E preconditions or requirements have not otherwise been satisfied by BM’s next of kin.

Consideration

10. The prohibitions upon publishing the names of both IP and BM, who are both children, as well as the names of the several child witnesses to the relevant events, are to be found in Division 3A of the Children (Criminal Proceedings) Act 1987 (NSW). The currently restricted judgment of this Court dealing with the s 5F appeal includes only anonymised references to these individuals.

11. Section 15A(1) of the Act provides relevantly as follows:

15A Publishing and broadcasting of names prohibited

(1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if ––

(a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or

(b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or

(c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or

(d) the person is otherwise involved in the proceedings and was a child when so involved, or

(e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed.

…

(5) A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

12. Section 15E is in these relevant terms:

15E Exception where child deceased

(1) This Division does not prohibit the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child.

(2) A person must not, as a senior available next of kin, give consent to the publication or broadcasting of the name of a deceased child unless it appears to the person, after making such inquiries as are reasonable in the circumstances, that no other senior available next of kin objects to the publication or broadcasting of the name.

(3) In addition, in considering whether to give consent to the publication or broadcasting of the name of a deceased child when the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under section 15A (1) (e), a senior available next of kin must ––

(a) make such inquiries as are reasonable in the circumstances to obtain the views of that brother or sister regarding the publication or broadcasting of the name of the deceased child, and

(b) take into account the impact of such a publication or broadcasting on that brother or sister.

…

(6) In this section, senior available next of kin of a deceased child means--

(a) a parent of the child, or

(b) …

13. It is important to bear in mind that the provisions under consideration deal with the prospect that, in this case, IP will be identified, or be likely to be identified, by the publication of the Court’s judgment if BM is referred to by name. It is not concerned with the question of whether or not some members of the community already know who IP is. Nor is the section concerned with the related issue of whether publication of the unrestricted judgment with references to BM by name would be a futility in the limited sense that those people familiar with the events that led to BM’s death already know who IP is. The section directs attention to the different question of whether the publication of BM’s name in the context of the circumstances that led to his death, as described in the judgment to be published, would itself identify IP or be likely to do so.

14. The matter can be tested by assuming a reading of the judgment by a stranger to the relevant events. There is no issue that IP would be identified in the judgment if BM’s name were to be published. The statutory question relevantly directs attention in the particular circumstances of this case to the extent to which, if at all, publication of BM’s name would be likely to lead to the identification of IP. The section does not speak in terms of whether or not it would be possible.

15. An unrestricted publication of the judgment that included BM’s name would not in my opinion be likely to reveal the identity of IP to an otherwise uninstructed reader. The events that gave rise to the charge are not described. The place where they occurred is similarly not mentioned. Moreover, even the general location or geographical area of the events or possibly specific identifying characteristics are not referred to at all. No individual whose name is not the subject of any restriction is referred to in the judgment. No institutions or landmarks or other possibly identifying clues appear anywhere in it at all. So far as the judgment is concerned, the events could have occurred at any time in any location anywhere in New South Wales.

16. In my opinion, a reference to BM’s full name in the Court’s judgment when published in an unrestricted form will not, and would not be likely to, identify or lead to the identification of IP. For these reasons, I consider that the Court should name BM in its published judgment.

17. WRIGHT J: I agree with Harrison CJ at CL.

18. WILSON J: I agree with the conclusion of the Chief Judge at Common Law, for the reasons his Honour has given. There being no reasonable possibility that IP could be identified by the publication of the Court’s earlier judgment modified to the extent of referring to the deceased child by his name, the wishes of BM’s senior next of kin should in my view be respected.

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Decision last updated: 28 February 2024